The Supreme Court of the Republic of the Philippines (SCORP) upheld the Constitutionality of the Visiting Forces Agreement, in a recent 9-4 En Banc ruling, Nicolas v. Romulo (2009) just as it did in the previous challenge nearly a decade ago, in Bayan v. Zamora (2000). The controversy revolves about the following 1987 provision:
Transitory Provisions - Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
Justice Antonio Carpio dissents from the Majority Decision and disposes as follows:
In summary, the VFA fails to comply with Section 25, Article XVIII of the Philippine Constitution requiring the United States to “recognize as a treaty” the VFA. This Court cannot allow the implementation of the VFA by the Philippine Government unless and until the United States recognizes the VFA as a treaty. This means that the VFA must be ratified by the U.S. Senate and made part of U.S. domestic law in accordance with Medellin. Only when this process is completed can this Court allow the implementation of the VFA. In the meantime, the accused Lance Corporal Daniel Smith of the U.S. Armed Forces should be subject to the same Philippine laws governing an accused in similar cases, without the application of the VFA or its subsidiary agreements.
Accordingly, I vote to (1) DECLARE the Visiting Forces Agreement incomplete and ineffective and thus UNENFORCEABLE, and to (2) ORDER the Director-General of the Philippine National Police, as well as the Secretary of Foreign Affairs, to immediately cause the transfer of the accused Lance Corporal Daniel Smith from the custody of the U.S. Embassy in Manila to the New Bilibid prison in Muntinlupa pending final resolution of his appeal from conviction for the crime of rape.
The very heart of Justice Carpio's dissent lies in the SUPPOSITION that the Visiting Forces Agreement is the Treaty that allows the presence of US troops in the Philippines as required by the Philippine Constitution.
Nego supositum! I deny the supposition! -- as does J. Azcuna and the SCoRP majority when it ruled:
In other words, it is the RP US Mutual Defense Treaty of 1952 that ALLOWS the presence of US troops on Philippine soil in Balikatan Exercises as "visiting forces."
[G.R. No. 175888] Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence.
All Justice Carpio has actually done is to establish that BY ITSELF the VFA as written would indeed be Constitutionally insufficient to allow the presence of US troops on Philippine soil. But Justice Carpio with all due respect, is actually barking up the wrong treaty here!
I shall deal with the matter of "Medellin v. Texas" in a succeeding post...